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Posani Ramachandraiah Vs. Daggupati Seshamma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P. Appeal Nos. 3 and 4 of 1977
Judge
Reported inAIR1978AP342
ActsLimitation Act, 1963 - Schedule - Article 136; Code of Civil Procedure (CPC), 1908 - Sections 48
AppellantPosani Ramachandraiah
RespondentDaggupati Seshamma
Appellant AdvocateY. Suryanarayana, Adv.
Respondent AdvocateN. Subba, Adv.
Excerpt:
limitation - mesne profits - article 136 of limitation act, 1963 and section 48 of code of civil procedure, 1908 - alienation of property annulled by court - claim of decree holder for recovery of costs against vendee objected being time barred - period of limitation commences from enforceable decree - limitation period commences from appellate order and not from original order by virtue of article 136 - absence of stay of original order while appeal pending irrelevant - claim filed within twelve years from appellate order falls within limitation period - held, claim maintainable. - - that contention was negatived by the executing court as well as punnayya j. this is on the well established principle that the decree of the first court merges in the appellate decree......form the date of that decree. in this case, the l.p.a. was dismissed on 30-10-1969. from that date the decree became enforceable. therefore, e.p.no. 39/1973 filed on 23-4-1973 within time, for it was filed within 12 years under art. 136 of the limitation act. consequently, we affirm the decision of punnayya, j., and dismiss l.p.a. no. 4/1977.11. in l.p.a. no. 4/1977, final decree for mense profits was passed on 7-2-1970. no appeal was filed against that decree by the appellant. e. p. no. 151/1973 was filed in 1973. therefore, it does not lie in the mouth of the appellant to contend that the proceedings are contrary to the direction given by the high court in the letters patent appeal, consequently we dismiss l.p.a. no. 4/1977.12. in the circumstances of the case, we direct each.....
Judgment:

Gangadhara Rao, J.

1. These two appeals are filed against the judgement of Punnayya, J. in AAO, Nos. 76 and 77 of 1975.

2. The respondent filed the suit O. S. No.93/1957 for the partition of the plaint A Schedule properties into two equal shares and for separate possession of one such share for her, after setting aside the alienations made by her son, the 1st defendant, in favour of defendants 2 to 5. The suit was decreed on 29-7-1958 and the alienations were set aside. The 2nd defendant, an alienee, preferred the appeal A. S. No. 506/1969 in the High Court, but it was dismissed on 26-9-1963. Then he filed L.P.A. No. 104/1964. It was also dismissed on 30-10-1969 with some directions. The decree-holder filed E. P. No. 39/1973 on 23-4-1973 against the 2nd defendant for recovery of costs. She also filed E.P. No. 151/1973 for recovery of mesne profits.

3. In E. P. No. 39/1973 the 2nd defendant has raised an objection that it was barred by limitation under Art. 136 of the Limitation Act. The learned Subordinate Judge negatived that contention. Punnayya, J. also held that the petition was not barred by limitation . In E. P. No. 151/1973, the 2nd defendant contended that it item No. 1 was allotted to the share of the 1st defendant pursuant to the direction of the High Court in the Letters Patent Appeal , there would be no need for him to pay any mesne profits. That contention was negatived by the executing court as well as Punnayya J.

4. First, we will take up L. P. A. No. 3/1977. It is submitted by Sri. Y. Suryanaryana, the learned counsel for the appellant that there was no stay during the pendency of the appeal and the Letters Patent Appeal in the High Court and, therefore, E.P. No. 39/1973 is barred by limitation. As stated by us already, the suit was decreed on 29-7-1958. E. P. was filed on 23-4-1973. The Letters Patent Appeal was disposed of on 30-10-1969. It is true there was no stay in the High Court.

5. The relevant Article that governs the case is Art. 136 of the Limitation Act, 1963. It provides that for the execution of any decree or order becomes enforceable. Sri. Y. Suryanaryana has submitted that the decree become enforceable on 29-7-1958 itself, since there was no stay and the decree-holder should have executed the decree within twelve years from that date, and the present petition filed on 23-4-1973 is beyond twelve years and, therefore, it is barred by limitation. To reinforce his argument he has referred to Art. 182 of the limitation Act, 1908, which provides that if there is an appeal. Emphasising on the absence of similar words in Art. 136 of the present Limitation Act, Sri Suryanaryana has contended that the period of limitation cannot be reckoned from the date of the decree in the Letters Patent Appeal when there was no stay in that appeal.

6. On the other hand, Sri Subba Reddy appearing for the respondent has submitted that S. 48 C. P. C. was repealed by the Limitation Act, 1963 and was re-enacted in Art. 136 and the decree becomes enforceable only when the appeal has been disposed of.

7. Art. 182 of the Limitation Act, 1908 provided that for the execution of a decree or order on any civil Court not provided for by Art. 183 or by S.48 of the Civil P. C. 1908 the period of limitation was three years, or where a certified copy of the decree order has been registered, six years. The period of limitation begins to run from the date of the decree or order, or, where there has been an appeal, the date of the final decree or order of the appellate court or the with drawl of the appeal.

8. S. 48 of the Civil P.C. runs as follows:-

'48. (1) Where an application to execute a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods , the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed:-

(a) To preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgement-debtor has, by fraud or force prevented the execution of the decree at some time within twelve years immediately before the date of the applications; or

(b) to limit or otherwise affect the operation of Art. 183 of the First Schedule in Indian Limitation Act 1908'. This section has been omitted by S. 28 of the Limitation Act, 1963 and practically re-enacted in the form of Art. 136 of the Limitation Act, 1963 replacing Art. 182 of the old Act. Art.136 reads as follows:- Description of Period of Time from which periodapplication limitation begins to run.136. For the execution of any Twelve When the decree or order bedecree (other than a decree granting a years. Comes enforceable or wheremandatory injunction) or order of any the decree or any subsequentCivil Court. Order directs any property to be made at a certain date or atrecurring periods, when default in making the payment or delivery in respect of whichexecution is sought, takes place:Provided that an application for the enforcement or exe-cution of a decree granting aperpetual injunction shall notbe subject to any period of lim-itation.

The reasons given by the Law Commissioner for enacting the present Art. 136 are as follows:-

'Art. 182 (old) has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgement-debtor. It has given rise to innumerable decisions. The commentary in Rustomji's Limitation Act (5th Edition) on this Article itself covers nearly 200 pages. In our opinion the maximum period of limitations for the execution of a decree or order of any Civil Court should be 12 years for the date when the decree or order became enforceable (which is usually the date of the decree) or where the decree or subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. There is, therefore, no need for a provision compelling the decree-holder to keep the decree alive by making an application every three years. There exists a provision already in S.48 of the Civil P.C. that a decree ceases to be enforceable after a period of 12 years. In England also the time fixed for enforcing a judgement is 12 years. Either the decree-holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of the decree after that period. To this provision of exception will have to be made to the effect that the Court may order the execution of the decree upon an application presented after the expiration of the period of 12 years, where the judgement -debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the applications. S. 48 of the Civil Procedure Code may be deleted and its provisions may be incorporated in this Act'. (Extracted from R.Mitra's Limitation Act, 1963 1964 Edition, at page 794).

9. Thus is could be seen that the present Art. 136 substantially re-produces the repealed S. 48 C. P. C. and replaces Art. 182 o f the Old Limitation Act. Therefore, we cannot interpret Art. 136 in the light of or by contrasting with Art. 182. On the other hand, it has to be interpreted only in the light of repealed S. 48 C.P.C. Art. 136 says that the period of limitation begins to run when the decree or order becomes enforceable. The repealed S. 48 C.P.C. says , that no order for execution of a decree shall be made after the expiration of twelve years from the date of the decree sought to be executed:, in S. 48 C.P. C. and the words 'where the decree or order becomes enforceable' in Art. 136 is practically the same. S. 48 C.P.C. has been the subject -matter of interpretation by a number of High Courts, It is unnecessary to refer to all of them. Suffice if we refer to two decision o f the Madras High Court which are binding upon us.

In Nacharammal v. Veerappa, AIR 1946 Mad 231, a Division Bench of the Madras High Court has held that where an appellate court passes a decree it takes the place of a decree of a trial Court and it is the decree of the appellate Court which becomes capable of execution, and consequently, the period of twelve years under S. 48 C.P.C. commences from the date of such appellate decree and not from the date of the decree of the trial Court. In Vyravan v. Rayalu Ayyar & Co., : AIR1951Mad844 , after reviewing the case-law on the subject, Subba Rao, J. (as he then was) held , that under S. 48 C.P.C. the period of 12 years should be computed from the date of the appellate decree, as the original decree would merge that in that of the appellate court. He observed that the terminus a quo in S. 48 would be the decree of the appellate Court, irrespective of the manner of the relief give by the appellate decree. This is on the well established principle that the decree of the first court merges in the appellate decree.

10. When the Legislature enacted Art. 136 by omitting S. 48 C.P.C. and reproducing it Art. 136, we have to take it that they must have been aware of the interpretation of S.46 by the Courts and approved of it. Consequently, we hold that under Art. 136 of the present Limitation Act, the period of limitation cab be reckoned from the date of the appellate decree, even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate court, and the period of limitation has to be reckoned form the date of that decree. In this case, the L.P.A. was dismissed on 30-10-1969. From that date the decree became enforceable. Therefore, E.P.No. 39/1973 filed on 23-4-1973 within time, for it was filed within 12 years under Art. 136 of the Limitation Act. Consequently, we affirm the decision of Punnayya, J., and dismiss L.P.A. No. 4/1977.

11. In L.P.A. No. 4/1977, final decree for mense profits was passed on 7-2-1970. No appeal was filed against that decree by the appellant. E. P. No. 151/1973 was filed in 1973. Therefore, it does not lie in the mouth of the appellant to contend that the proceedings are contrary to the direction given by the High Court in the Letters Patent Appeal, Consequently we dismiss L.P.A. No. 4/1977.

12. In the circumstances of the case, we direct each party to bear his costs in the two appeals.

13. Appeals dismissed.


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